TMI Blog2023 (2) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered while adjudicating upon such an application. In order to establish that the suit property is benami, and it was purchased out of funds sent by son of the petitioner, and it falls under the prohibition of Section 4, or falls in the exception under Section 2(9), evidence will have to be led. As such, in the present case, plaint could not have been rejected under Order 7 Rule 11 CPC. Thus it is clear that there is no error in the order impugned herein. Accordingly, find no merit in the present Revision Petition and the same is hereby dismissed. - CR No.8252-2016 (O&M) - - - Dated:- 27-1-2023 - Hon ble Ms. Justice Nidhi Gupta For the Petitioners : Mr. A.K. Jain, Advocate For the Respondents No.1 and 2. : Mr. Ivan Khos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is this application, which has been dismissed by the learned trial Court by way of impugned order. Hence, the present Revision Petition. It is submitted by learned counsel for the petitioner that the petitioner has purchased property in her name by finances provided by her son. It is submitted that as such, the Suit was barred by afflux of law as, as per Section 4 of the Benami Act, right to recover benami property is prohibited. It is further submitted that moreover, the respondents/plaintiffs had no locus to file the instant Suit which was solely filed with intent of causing harassment to the petitioner and to usurp property of the petitioner. It is further submitted that at best, son of the petitioner could have laid challenge but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angement- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by- (i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,- (i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered. 4. Prohibition of the right to recover property held benami .-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order 7, Rule 11 CPC was taken up for consideration. The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see whether accepting the averments in the plaint the suit is barred by any law or not. We may quote the following observations of this Court in Popat and Kotecha Property v. State Bank of India Staff Association, 2005(4) RCR (Civil) 334 : (2005) 7 SCC 510: 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus taken away, and therefore, the trial court has erred in holding that there existed a vested right in favour of the respondents/defendants by the repealed provisions of Section 4(3) of the unamended Act when it used the expressions fiduciary capacity and trustee . It is, therefore, held that definitions of the exempted transactions to the prohibited benami property transactions, and now contained in the four exceptions in Section 2(9) of the Act are always deemed to have been included in the exceptions to the prohibited benami transactions, and in the facts of the present case, the suit of the appellant/plaintiff would be maintainable by the third exception contained in Section 2(9) of the Amended Act, and that whether or not on fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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